A subsequent case from the U.S. Court of Appeals for the Ninth Circuit proves resistance is not futile, and arbitration agreements can be successfully challenged under the right circumstances. The employee in this case applied for a job at a well established grocery chain. She signed and submitted an employment application stating that by completing the application, the employee agreed to be bound by the grocery chain’s arbitration policy. Although the policy was not actually provided to the employee until her orientation, the application contained an acknowledgment the terms of the mandatory and binding arbitration policy had been provided for the applicant’s review.

The arbitration policy itself contained a convoluted arbitrator selection mechanism which practically guaranteed the party not requesting arbitration would always have the arbitrator of its choosing. Certain well respected arbitration forums were excluded outright. Another paragraph permitted the grocery chain to unilaterally modify the policy without notice to the employee, with the employee’s continued employment constituting acceptance of the modifications. Finally, the parties were required to divide the arbitration fees regardless of the merits of the case.

Six months after the employee began working for the grocery chain, she left her employment under contentious circumstances. She then sued the grocery chain, alleging violations of California’s labor laws. The grocery chain moved to dismiss the case and to compel arbitration based on the terms of the arbitration policy. The grocery chain argued its arbitration policy was binding and controlling because the employee agreed to it when she applied for employment.

The employee argued the arbitration agreement was unenforceable because it was created under unfair circumstances. The Ninth Circuit Court of Appeals agreed with the employee for all the reasons she set forth below.

First, the circumstances under which the contract was entered were oppressive because there was no real negotiation involved. The arbitration policy was presented as a “take it or leave it” proposition. If the employee did not accept its terms, she would not be permitted to work.

Second, the terms of the arbitration policy were not provided to the employee when she first signed the employment application. Instead, the policy was given to her several weeks after the document had already been submitted. In this respect, the employee had no opportunity to assess its terms, let alone negotiate it. The grocery store’s employment application bound the employee to later provided terms, something most courts frown upon.

Third, the arbitrator selection clause of the policy seemed to unfairly favor the grocery chain because it virtually guaranteed the grocery chain would get the arbitrator it wanted. Last, the employee argued the arbitration policy lacked any semblance of fairness because it prevented the employee from seeking redress for harm by requiring her to pay for arbitration fees regardless of the merits of her case. Therefore, the court found the arbitration policy as referenced by the employment application was not enforceable.

Richard Busch was quoted in The Hollywood Reporter and USA Today about his representation of Jillian Michaels and prevailing against Lion’s Gate. Read the articles here:The Hollywood ReporterUSA Today

Richard Busch interviewed by the BBC in London about U.S. Copyright Law and some of the recent cases on which he has worked. Listen to the interview here.

Richard Busch was cited in The Hollywood Reporter about Ed Sheeran settling the lawsuit over the hit song Photograph.Read the article here.

Eddie Wayland was featured in an article in the Tennessee Trucking News magazine, the official magazine of the Truckload Carriers Association.Read the article here.

Doug Piercewas quoted in the Nashville Post regarding King & Ballow’s victory over the City of Nashville; at issue was the ‘promptness’ for producing records under the Tennessee Public Records Act. A judge ruled the City violated the statute.Read the article here.

Richard Busch was quoted on Law.com about his legal background, experience with copyright infringement cases, and the ‘Blurred Lines’ appeal.Read the article here.

King & Ballow congratulates Eddie Wayland for being named to the 2017 edition of The Best Lawyers in America in the practice areas of: Employment Law - Management, First Amendment Law, Labor Law - Management, Litigation - Labor and Employment and Transportation Law. Mr. Wayland has been consistently recognized by his peers and named to the publication for over 25 years.Read more here.

Richard Busch most recently obtained a favorable decision by the United States Court of Appeals, reversing the district court, and holding that the author of the "Iron Man Theme" from Marvel's "Iron Man" television show, and movies, had submitted sufficient evidence that his creation was not a "work for hire" in order to proceed to trial on his copyright infringement claim. The full decision can be accessed here.

King & Ballow congratulates Eddie Wayland for being featured in an article in the Tennessee Trucking News magazine, the official magazine of the Truckload Carriers Association.Read the article here.

King & Ballow congratulates Richard Busch for being named to Billboard Magazine’s 2016 “Music Industry's Top Lawyers.”Read more here.

Richard Buschwas quoted in Rolling Stone Magazine on the new 'Stairway to Heaven' case.Read the article here.

Eddie Wayland is featured in the Truckload Authority magazine, the official publication of the Truckload Carriers Association in the article, “Labor Pains: New Labor Laws Could Cause You Pain If You Are Not Prepared.” Read the article here.Richard Busch takes on another high-profile copyright infringement case.Read the article here.

King & Ballow congratulates Eddie Wayland for being named to the 2016 edition of The Best Lawyers in America, wherein the top 4% of attorneys in the country are recognized. Mr. Wayland has been consistently named to the publication for over 25 years.Read more here.

King & Ballow congratulates Richard Busch for being named to Billboard Magazine’s 2015 “Music's Most Powerful Attorneys,” where he was one of only four litigators named.Read more here.

Richard Busch was a featured litigator in Billboard Magazine regarding the “Blurred Lines” case.Read the article here.

Richard Busch appeared on America’s Newsroom this morning to discuss Bill Cosby’s 2005 admission to purchasing Quaaludes to drug women.Watch the video here.

Richard Busch is frequently asked to discuss legal issues on Fox Business News. He recently appeared to discuss the class action lawsuits filed against Manny Pacquiao, and others, related to the alleged non-disclosure of a shoulder injury prior to the fight against Floyd Mayweather.Watch the video here.

King & Ballow congratulates Paul Duvall for being named to Martindale Hubbell Top Lawyers list for Wage & Hour for 2014 and 2013. Click here to read the article.

King & Ballow congratulates Richard S. Busch for being named to the Hollywood Reporter's 2013 list of the top 100 entertainment lawyers in the United States. This is the second year in a row Mr. Busch has been so honored. Mr. Busch, who has been with King & Ballow since 1991, is the partner in charge of the Firm's Entertainment and Intellectual Property sections.Click here to read the article.

Steve Douse was quoted in the article, National Newspaper Association Challenges Valassis, Inc. | Post Deal in Federal Court. Regarding competition with the USPS, Douse said, “It forces firms to compete with the Postal Service and Valassis with one hand tied behind their backs.”Click here to read the article

Richard Busch'sForbes Magazine article, Fighting For The Right To Superman's Copyright: More Brutal Than Anything Lex Luthor Could Have Imagined Click here to read the full article.